Is a duty of care owed?
- State the 'Neighbour' test - Donoghue V Stevenson (1932) - you must take reasonable care to avoid acts or omissions which can reasonably foresee would be likely to injure your neighbour.
- Other relevant cases - Home Office V Dorset Yacht Co Ltd (1970) (Unsupervised boys damaging yacht). Bourhill V Young (1943) (Motorcycle accident, stillborn child died) .
- However, the test was changed in the case of Caparo V Dickman; this added a new three part test:
1. Proximity - whether the relationship between the defendant and the claimant was close (time, location, context). Hill V Chief Constable of West Yorkshire (1988) (Yorkshire ripper and last victim was not sufficiently close).
2. Reasonably foreseeable - injury suffered must be a reasonably foreseeable consequence. Langley V Dray (1998) (Car chase, a car crash is reasonably foreseeable).
3. Is it fair, just and reasonable to impose a duty of care? Mulcahy V Ministry of Defence (1996) (Soldier with damaged ears, not fair because of combat/war situation.
Has the defendant fallen below the standard of car
If defendant has, court looks at the four risk factors
1. Likelihood of harm - Bolton V Stone (1951) (Cricket club, likelihood of harm to public was too small, thus had not fallen below the standard of care.
2. Seriousness of injury - Paris V Stepney Borough Council (1951) (Lost his good eye, the seriousness of the injury was great and could have been worse so therefore they had fallen below the standard of care.
3. Cost and practicality - Latimer V AEC Ltd (1953) (sawdust on wet floor, the cost and practicality of the precautions was enough. Therefore, did not fall below the standard of care).
4. Social utility Act - Watt V Hertforshire County Council (1954) (fireman not securing jack on way to save a woman, social utility act outweighed the risk of not securing the jack, therefore, did not fall below the standard of care.
Is there sufficient damage?
- Has the breach of duty caused the damage. Would the damage have occured 'but for' the defendants actions. Barnett V Chelsea and Kensington Hospital (1968) (but for the hospitals actions the victim would have died of arsenic anyway).
- Is the damage too remote? Wagon Mound (1961) (Damage to claimant's wharf from a fire on the harbour was too remote because it happened days later after the oil spill.Hughes V Lord Advocate (1963) (burns to victim were foreseeable result of paraffin lamps being left unattended near manhole, thus damage is not remote.
- Thin skull rule - the defendant must take the victim as he finds him. Smith V Leech Brain (1962) (defendant developed cancer on his lip. Employer had to take the victim as they found him).